THE ATTOKSET GESERAL 

OF TEXAS 

December 27, 1989 

Honorable Bob Bullock Opinion No. JM-1124 

Comptroller of Public Accounts 

L.B.J. State Office Building Re: Effect of amendments 

Austin, Texas 78774 to statutes that allow a 

driver to defer disposition of punishment pending 

successful completion of a 

defensive driving course 

(RQ-1815) 

Dear Mr. Bullock: 

You ask about the effect of an amendment to section 

143A of article 6701d, V.T.C.S., by Senate Bill 1204 of the 

71st Legislature. Section 143A permits a court to defer 

disposition of punishment for driving offenses pending 

successful completion of a defensive driving course. You 

also direct our attention to Senate Bill 1085 of the 71st 

Legislature because of its provision relating to the payment 

of court costs. You advise us that your concern with Senate 

Bill 1085 is limited solely to the effect it may have on 

costs in a section 143A proceeding. 

Section 143A of article 6701d, V.T.C.S., as amended by 

Senate Bill 1204, Acts 1989, 71st Leg., ch. 1105, 5 2, at 

4579, effective September 1, 1989, provides in pertinent 

part: 

(a) When a person is charged with a misdemeanor offense under this Act, other than 

a violation of Section 51, committed while 

operating a motor vehicle, the defendant 

shall be advised of his right to successfully 

complete a driving safety course and the 

court: 

(1) in its discretion may defer proceedings and allow the person 90 days to 

present evidence that, subsequent to the 

alleged act, the person has successfully 

completed a driving safety course approved 

by the Texas Department of Public Safety 

p. 5905 
Honorable Bob Bullock - Page 2,, (JM-1124) 

or other driving safety course approved by 

the court; or 

(2) shall defer proceedings and allow 

the person 90 days to present a department-approved certificate of course 

completion as written evidence that, 

subsequent to the alleged act, the person 

has successfully completed a driving 

safety course approved by the Texas 

Department of Public Safety or another 

driving safety course approved by the 

court, if: 

(A) on or before the answer date 

on the cjtation the person enters a 

plea in person or in writing of No 

Contest or Guilty and presents to the 

court an oral request or a written 

request, in person or by mail postma rk ed on 

on the citation, to-take a course; 

(B) the 

the nerson's ~1 a f No Contest or 

Guiltv at the tize Othe olea is made 

fl 

for 90 davs; 

&)- the person has a valid Texas 

driver's license or permit: 

m [@)I the person's driving 

record as maintained by the Texas 

Department of Public Safety does not 

indicate su,ccessful completion of a 

driving safety course under this 

subdivision within the two years 

immediately preceding the date of the 

alleged offense: 

1E). [fD)] the person files 

affidavit with the court stating thi: 

the person is not in the process of 

taking a course under this subdivision and has not completed a course 

under this subdivision that is not 

yet reflected on the person's driving 

record: and 

P. 5906 
Honorable Bob Bullock - Page 3 (JM-1124) 

m [f3)] the offense charged is 

for an offense covered by this section other than speeding 25 miles per 

hour or more over the posted speed 

limit at the place where the alleged 

offense occurred. 

(b) When the person complies with the 

provisions of Subsection (a) of this section 

and a certificate of course completion 

approved by the department is accepted by the 

court, the court shall rem ve the ludoment 

and dismiss the charge, bug the court may 

only dismiss one charge for completion of 

each course. 

When a charge is dismissed under this 

section, the charge may not be part of the 

person's driving record or used for any 

purpose, but the court shall report the fact 

that a person has successfully completed a 

driving safety course and the date of completion to the Texas Department of Public Safety 

for inclusion in the person's driving record. 

The court shall note in its report whether 

the course was taken under the procedure 

provided by Subdivision (2) of Subsection (a). 

of this section for the purpose of providing 

information necessary to determine eligibility to take a subsequent course under. 

that subdivision. An insurer delivering or 

issuing for delivery a motor vehicle insurance policy in this state may not cancel 

or increase the premium charged the insured 

under the policy merely because of an offense 

dismissed under this section or because the 

insured completed a driving safety course 

under this section. (Emphasis indicates 

changes and additions made by Senate Bill 

1204.) . 

Senate Bill 1085, Acts 1989, 71st Leg., ch. 347, §§ 2, 

6, 9, 10, at 1316, effective October 1, 1989, amends article 

102.051 of the Code of Criminal Procedure, section 415.082 

of the Government Code, section 1C of the Texas Motor 

Vehicle Safety-Responsibility Act (article 6701h, V.T.C.S.), 

and section 14 of the Crime Victims Compensation Act 

(article 8309-1, V.T.C.S.). Each of these statutes provides 

for payment of court costs upon conviction of the defendant. 

The amendments by Senate Bill 1085 provide in all of the 

p. 5907' 
Honorable Bob Bullock - Page 4 (~~-1124) 

foregoing statutes that a person is considered to have been 

convicted in a case if a sentence is imposed, the defendant 

receives probation or deferred adjudication, or the court 

defers final disposition of the case. 

Article 102.051 of the Code of Criminal Procedure 

provides that a defendant convicted of a misdemeanor 

punishable by a fine, not to exceed $200, shall pay as cost 

of court $5. In the event the conviction is for a 

misdemeanor punishable by a fine exceeding $200, the 

defendant shall pay court costs of $10. Pedestrian and 

parking offenses are excepted from these costs. Municipal 

and county treasurers may retain 10 percent of the costs. 

Id. art. 102.054. The comptroller of public accounts 

deposits the funds received by him in a special fund to be 

known as the criminal justice planning fund. L art. 

102.055. 

In light of the amendments resulting from Senate Bill 

1204 and Senate Bill 1085, you ask the following questions: 

1. Whether these amendments in S.B. No. 

1085 and S.B. No. 1204 can be reconciled with 

Texas Attorney General Opinion No. J'M-917 or 

whether they also are unconstitutional since 

they purport to punish someone as if they 

were finally convicted without regard to 

whether they are ultimately convicted of an 

offense? 

2. Are court costs due at the time the 

judgment is entered as Article 6701d, Sec. 

143A, as amended by S.B. No. 1204 requires? 

3. Whether the administrative cost authorized in Article 6701d can be reconciled 

with Texas Attorney General Opinion No. 

JM-917? 

Attorney General .Opinion JM-917 (1988) addressed the 

constitutionality of section lC(e) of article 6701h, 

V.T.C.S. That statute permitted courts to charge a ten 

dollar fee before dismissing a criminal charge for failure 

to maintain proof of financial responsibility, when the 

charge was based solely on failure to produce suitable 

documentary proof of financial responsibility when requested 

by a police officer and when adequate proof could be 

produced at a subsequent hearing. It was noted that while 

proof of financial responsibility must be furnished to an 

officer who requests it, failure to furnish the evidence is 

.p. 5908 
Honorable Bob Bullock - Page 5 (JM-1124) 

, 

not a crime. The operator was in effect paying a fee for 

dismissal of a charge based on a violation that is nonexistent, i.e., failure to have in his possession proof of 

financial responsibility. It was concluded that a criminal 

defendant innocent of a charge may not be required to pay a 

fee in order to have a charge dismissed. 

Subsection (a) of section 143A, article 6701d, affords 

the court an option after advising the defendant of his 

right to complete a driving safety course. Under subsection (a)(l) the court is given the discretion to defer 

proceedings for 90 days without the necessity of a plea 

being entered by the defendant or entry of judgment. Nor is 

there any requirement that the defendant make application 

for deferral to complete a driving course. 

Under subsection (a) (2), the court defers proceedings 

for 90 days upon the defendant's oral or written request to 

take a driving safety course. The request must be submitted 

at or before the time the defendant enters a plea of guilty 

or no contest, and the court enters judgment on the plea. 

In addition the defendant must satisfy the requirements of 

subsections (2)(C), (D), (E), and (F). We assume that the 

judgment reflects a conviction for the offense since a plea 

of guilty (without the necessity of supporting evidence) is 

sufficient to support a conviction in a misdemeanor offense. 

Code Crim. Proc. art. 27.14(a). A plea of guilty and waiver 

of jury in a misdemeanor case for which the maximum punishment is by fine only may be made by mail to the court 

and will support a conviction. LB, 27.14(b); see Attorney 

General Opinion JM-876 (1988). 

Unlike the procedure denounced in Attorney General 

Opinion JW-971, we presume the charged violation in your 

scenario has the underpinning of an existing offense. 

The procedure followed under V.T.C.S. article 6701d, 

section 143A(a)(2), appears to be a form of probation. The 

defendant enters a plea of guilty or no contest and judgment 

is entered thereon.1 Imposition of judgment is deferred 

only upon application of the defendant. Removal of judgment 

1. In deferred adjudication proceedings the court 

defers further proceedings following the plea and does not 

enter an adjudication of guilt. See Attorney General 

Opinion JM-377 (1985). 

p. 5909 
Honorable Bob Bullock - Page 6 (JM-1124) 

and dismissal of the charge results upon proof of the 

defendant's successful completion of the driving course. 

In E, m 709 S.W.2d 744 (Tex. 

;ef'd) 

App. - San 

Antonio 1986, pet. the court rejected the 

defendant's claimed violatio;s of due process and equal 

protection of the law resulting from a statutory requirement 

(article 42.12B, section 6b(c) of the code of Criminal 

Procedure) that he serve 120 days in prison as a condition 

of probation on a conviction for involuntary manslaughter by 

reason of intoxication. Probation in &one2 had been granted 

under article 42.12 of the Code of Criminal Procedure. 

Section 3d(c) of article 42.12 provides that upon successful 

completion of the terms of probation, the court dismisses 

the charge and discharges the defendant. Following 

dismissal of the charge the defendant is not deemed to have 

been convicted of an offense. 

Attorney General Opinion JM-898 (1988) addressed the 

matter of a justice of the peace requiring community service 

under article 45.54 of the Code of Criminal Procedure.. 

Article 45.54 provides that upon conviction of a defendant 

of a misdemeanor (other than a violation under 67016) punishable by fine only, the justice may suspend the imposition 

of the fine and defer final disposition of the case for a 

period not to exceed 180 days. In Attorney General Opinion 

JM-898, it was concluded that the defendant may be required 

to perform reasonable community service as a condition of 

deferral under section (2)(d) of article 45.54, authorizing 

the justice to defer disposition of the defendant's case on 

compliance with reasonable conditions other than payment of 

the fine. At the conclusion of the deferral period, the 

justice has authority under the provisions of article 45.54 

to dismiss the complaint. 

The fact that a defendant under subsection (a)(2) of 

section 143A of article 6701d may be required to successfully complete a driving course (pursuant to his application) and pay court costs upon entry of judgment following 

his plea does not in our opinion render these statutory 

requirements unconstitutional because the judgment may 

ultimately be removed and the cause dismissed. 

The more difficult question arises under subsection 

(a)(l) where the court is given the discretion of deferring 

proceedings for 90 days without the necessity of the 

.defendant entering a plea, a judgment being entered, or the 

defendant making application for deferral in order to take a 

driving course. A statutory prerequisite to the assessment 

of costs in question is the conviction of the defendant. 

p. 5910 
Honorable Bob Bullock - Page 7 (JM-1124) 

Under Senate Bill 1085 the defendant is considered to have 

been convicted in a case if "(1) a sentence is imposed; (2) 

the defendant receives probation or deferred adjudication: 

or (3) the court defers final disnosition of he cas 

Acts 1989, 71st Leg., ch. 347, 5 2, at 1317t (empha%i 

added). 

Under Senate Bill 1085 a person may be considered 

convicted where the "court defers final disposition of the 

case." Id, If applied to subsection (a)(l) of section 143A 

of article 6701d, the result would be that a judgment 

reflecting guilt of the defendant would be entered without 

the defendant having received any semblance of a trial. 

Instead, under subsection (a).(l) the .court merely defers 

proceedings to allow the defendant time to complete a 

driving safety course. No plea is required nor is there any 

adjudication of guilt or entry of judgment. We believe that 

to allow court costs to be assessed upon the basis of a 

statutory assumption of guilt of a defendant under these 

circumstances is to deprive the defendant of property 

without due process of law. Such a procedure allows a 

conviction to be entered against a defendant without having 

afforded the defendant his constitutional right to a trial. 

In your second question you ask if court costs are due 

at the time judgment is entered in a section 143A, article 

6701d, proceeding. Our treatment of your first question 

reflects that imposition of court costs predicated on a 

conviction without a plea or judgment is unconstitutional 

under subsection (a)(l). In Attorney General Opinion JM-526 

(1986), it was concluded that court costs are due at the 

time the judgment of conviction is entered in an article 

45.54 proceeding rather than at the end of the deferral 

period when the complaint may be dismissed. & at 5; see 

Attorney General Opinion JM-905 (1988). We conclude that 

under a subsection (a)(2) proceeding court costs are due at 

the time "the court enters judgment on the person's plea 

of No Contest or Guilty . . . .'I V.T.C.S. art. 6701d, 

5 143A(s)(l)(B) (as amended by Senate Bill 1204, Acts 1989, 

71st Leg., ch. 1105, 5 2, at.4579). 

In your final question you ask whether the administrative costs authorized in article 6701d may be reconciled 

with Attorney General Opinion JN-917 (1988). Subsection (c) 

of section 143A of article 6701d provides "[t]he court may 

require the person requesting a driving safety course to pay 

a fee set by the court at an amount that does not exceed 

$10 including any special fees authorized by statute or 

municipal ordinance to cover the cost of administering this 

section." Funds collected are deposited in the municipal 

p. 5911 
Honorable Bob Bullock - Page 8 (JM-1124) 

treasury if the trial is in municipal court and in the 

county treasury if trial is in the justice court. L 

Attorney General Opinion JM-441 (1986) concluded 'that 

section 143A, article 6701d, did not allow the assessment of 

an administrative fee against the defendant or against the 

providers of driving courses without statutory authoriaation, The opinion stated "[i]t is well-established that a 

fee may not be charged unless the fee is provided for by 

law." Id. at 1. The legislature appears to have responded 

to Attorney General Opinion JW-441 by amending the statute 

in Senate Bill 515, Acts 1987, 70th Leg., ch. 1059, B 1, at 

3591, effective September 1, 1987, by providing for the fee 

set forth in subsection (c) for the costs of administering 

this section. The guesti-Jn of the constitutionality of the 

administrative fee was neither raised nor addressed in 

Attorney General Opinion JW-441. 

The distinction between a subsection (a)(2) procedure 

and the one denounced in Attorney General Opinion JW-917 has 

been discussed in your first question. We conclude that the 

statutorily imposed fee for administering a section 143A 

procedure is an appropriate cost under the form of probation 

granted pursuant to subsection (a)(z).2 

As heretofore noted no plea is made by the defendant 

nor is there any adjudication of guilt under subsection 

(a) (1). Whether the amount assessed is denominated as 

"court cc&z" or "administrative fee," it is a governmentally 

imposed cost incident to the filing of a charged violation 

of the law. In Attorney General Opinion JM-880 (1988), at 

3, it was stated: 

In Texas, costs in misdemeanor criminal 

cases are assessed as part of the punishment. 

B oarte Carson, 159 S.W.2d 126 (Tex. Crim. 

App. 1942); uarte IQ&I& 46 S.W. 828 (Tex. 

Crim. App. 1898). See also Attorney General 

Opinion JM-443 (1986). & United States v 

Palmer, 809 .F.2d 1504 (11th Cir. 1987; 

2. Without knowing what other "special fees authorized 

by statute or municipal ordinance" may be authorized to 

cover costs of this section, we are unable to pass judgment 

on the constitutionality of this provision in subsection 

(Cl * 

p. 5912 
i 

Honorable Bob Bullock T Page 9 (JM-1124) 

(holding imposition of costs as punishment to 

be constitutional). 

Since the defendant in a subsection (a)(l) proceeding 

has never been adjudicated to be guilty of any offense, we 

conclude that the imposition of administrative costs against 

the defendant in such a procedure possesses the same constitutional infirmities. found in Attorney General Opinion 

JM-917. 

SUMMARY 

Senate Bill 1204 and Senate Bill 1085 of 

the 71st Legislature are not violative of any 

constitutional provision in permitting costs 

to be assessed against a defendant in a 

sp;zctfi =(t)(2), section 143A, article 

. . . proceeding that permits the 

court'to defer'imposition of judgment pending 

successful completion of a defensive driving 

course. The assessment'of court costs in a 

;E;ctio; T(;)sl), section. 143A, article 

. 

defendant is 

. . ., proceeding where the 

adjudged to be guilty without 

having entered a plea to the charge or the 

court having made an adjudication of guilt 

deprives a defendant of due process of law 

and his constitutional right to a trial. 

Court costs are due at the time of entry of 

judgment following the defendant's plea and 

entry of judgment in a subsection 

proceeding. A fee not to exceed(a)::!) 

authorized by subsection (c) of section 143A, 

article 6701d, V.T.C.S., is not violative of 

any constitutional provision in a subsection 

(a)(2) proceeding. The imposition of such 

fee in a subsection (a)(l) proceeding is 

unconstitutional. 

Very truly yo r , J AA b 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

p. 5913 
Honorable Bob.Bullock - Page 10 (JM-1124) 

JUDGE ZOLLIE STEAKLJZY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

p. 5914